# Wooderson v. Ortho Pharmaceutical Corp. > Supreme Court of Kansas · April 27, 1984 · 235 Kan. 387 URL: https://www.frixlaw.com/law-library/cases/9619383 ## Case - **Full name:** Carol Lynn Wooderson, Appellee, v. Ortho Pharmaceutical Corporation, Appellant - **Court:** Supreme Court of Kansas - **Decided:** April 27, 1984 - **Citations:** 235 Kan. 387; 681 P.2d 1038; 1984 Kan. LEXIS 338 - **Precedential status:** Published - **Opinion:** Dissent by Schroeder - **Judges:** Miller, Schroeder - **Cited by:** 125 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9619383 ## How later opinions describe it (automated extraction) - explaining that a “manufacturer’s duty to warn is, therefore, commensurate not only with its actual knowledge gained from research and adverse reaction reports but also with its constructive knowledge as measured by scientific literature and other available means of communicat… - noting that the evidence presented by defendant was "insufficient to rebut the presumption” of causation from a deficient warning ## Opinion text Schroeder, C.J., dissenting: This is a comparative negligence action brought by the plaintiff Carol Lynn Wooderson, to recover damages for personal injuries which she claims resulted from ingestion of the oral contraceptive Ortho-Novum 1/80 over a period of years. The defendants named when the action was filed were the Ortho Pharmaceutical Corportion (Ortho) and the plaintiff s gynecologists, Dr. Hermes and Dr. Wilcox. The plaintiff alleged negligence on the part of her doctors and on the part of Ortho. When the pretrial conference was conducted the doctors were represented by counsel in the action and the plaintiff was pursuing her action against the doctors as well as Ortho. After the pretrial conference and shortly prior to trial, the plaintiff settled with the two doctors who in turn moved for summary judgment which the trial court sustained. This court in its majority opinion gratuitously states, “a simple dismissal of *422 plaintiff s claims, with prejudice, would have accomplished the same result.” Ortho objected to the dismissal of the physicians, and at trial sought to have their negligence compared. The trial court ruled in substance that the negligence of the doctors had been removed by counsel for the plaintiff from this action and the court was concerned only with the questions raised by the plaintiff against the defendant Ortho. This, in my opinion, was reversible error for the following reasons. In its answer Ortho alleged that if the plaintiff sustained injury, she was guilty of negligence which contributed directly and proximately as a cause of her injuries, and that she failed to use the product in the manner intended. The answer of Ortho also alleged that the plaintiff s injuries, if any, were caused by the negligence of other parties for whom Ortho is not responsible. . Addressing the comparative negligence statute, K.S.A. 60-258a, the court in its opinion says: “We have held that the intent and purpose of the legislature in adopting the statute is to impose individual liability for damages based on the proportionate fault of all of the parties to an occurrence which gave rise to the injuries and damages, whether or not those persons are joined formally as parties to the action.” (Emphasis added.) The court properly cites Brown v. Keill, 224 Kan. 195 , 580 P.2d 867 (1978), for this proposition. However, from this point on in the opinion the court completely ignores Brown v. Keill without further comment on the validity of this precedent. Brown v. Keill was reaffirmed and asserted as controlling law on the proposition above stated in Gaulden v. Burlington Northern, Inc., 232 Kan. 205 , 654 P.2d 383 (1982). There a factual situation similar to the instant case was presented in a case involving the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., (FELA). The plaintiff sued the railroad and Jack James. Later the plaintiff settled with James and the trial court dismissed James from the lawsuit. Even though the plaintiff was entitled to recover the entire judgment, less the plaintiff s percentage of negligence, from the railroad, the trial court was reversed and the case was sent back for a new trial with instructions that the negligence of James must be compared with that of the plaintiff and the railroad on the authority of Brown v. Keill, and other cases cited *423 therein. The court referred to the comparative negligence statute, K.S.A. 60-258a, and said: “The purpose of that statute is to impose individual liability for damages based upon proportionate fault. The concept of joint and several liability between joint tortfeasors no longer applies, and since individual judgments will be based upon proportionate fault, contribution among joint judgment debtors is no longer required. Brown v. Keill, 224 Kan. 195 , 580 P.2d 867 (1978). . . . “We have consistently held that all issues of liability, including the causal negligence or fault of all parties to an occurrence, should be determined in one lawsuit, whether the participants, are all formally joined as parties to that lawsuit or not. Brown v. Keill, 224 Kan. 195 ; Eurich v. Alkire, 224 Kan. 236 , 579 P.2d 1207 (1978); Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368 , 634 P.2d 1127 (1981); and Lester v. Magic Chef, Inc., 230 Kan. 643 , 641 P.2d 353 (1982).” (Emphasis added.) 232 Kan. at 212-13 . In the case at bar, the trial court granted summary judgment for the doctors on their own motion, and ruled their negligence was no longer an issue. It then declared the sole remaining issue of negligence to be the adequacy of the warning given the doctors by Ortho in the distribution of its prescription drug, for which negligence, if any, the plaintiff was entitled to recover damages. Ry this ruling the plaintiff was insulated at the trial against any charge of negligence. Ry this procedure, and the instructions given by the trial court, Ortho was stymied. In substance, the jury was permitted to have only tunnel vision focused upon Ortho to respond for the total damages suffered by the plaintiff. It cannot be successfully argued the doctors were not negligent in the administration of this prescription drug, or in their treatment of this young plaintiff, after her blood pressure in December 1974 was diagnosed by them as high, simply because the plaintiff settled with them. The plaintiff sued them charging negligence and pursued her claim against them. Only after settlement was a summary judgment sustained on the doctors’ own motion. The jury in this comparative negligence action should have been permitted to consider the negligence of all parties to the occurrence in order to fulfill the intent of the comparative negligence statute to impose individual liability for damages based upon proportionate fault. See Gaulden v. Burlington Northern, Inc., 232 Kan. at 212-13 . For the court to declare, as a matter of law, that there was no *424 evidence for the jury to consider on the issue of plaintiffs contributory negligence is presumptuous and speculative. The plaintiff, a young woman just married in 1972 and in good health, was diagnosed by her doctor as having high blood pressure (130/80) in December 1974, and again (120/90) in January 1976. She did not return to her doctor’s office again until June 28, 1976, although she called in giving her symptoms on May 4, 1976, as a cold and on June 25,1976, as stomach pains and vomiting. These facts in the record must be viewed in light of a situation where the doctors have been erroneously removed from the case as parties whose negligence should have been considered. Had the case been tried with the doctors in the case for comparison of their negligence with that of the plaintiff and Ortho, the evidence may have been substantially different. The simple issue upon which the trial court admitted relevant evidence would have been expanded to other issues upon which evidence excluded would have been relevant. By limiting the jury to the issue tried, the entire injury and resulting damages to the plaintiff were heaped upon Ortho. With the entire focus upon Ortho and with the nature and extent of plaintiff s damages, it was not difficult for plaintiff s counsel to convince the jury to award substantial punitive damages. In fact, had the negligence of all parties been submitted to the jury the actual damages may have been much less and there may have been no punitive damages awarded. It is respectfully submitted the judgment of the trial court should be reversed and a new trial granted in conformity with the law of comparative negligence as heretofore announced by the Supreme Court. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9619383. Public record. Not legal advice.